B-207897-OM, JAN 12, 1983

B-207897-OM, JAN 12, 1983

PRECIS-UNAVAILABLE

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE PERTAINING TO THE APPARENT VIOLATIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, AND THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT, 40 U.S.C. 327 ET SEQ., BY BEAVER VALLEY BUILDING SUPPLY, INC., WHICH PERFORMED WORK UNDER FEDERAL AVIATION ADMINISTRATION PROJECT NO. 6-42-0081-11 AT GREATER PITTSBURGH INTERNATIONAL AIRPORT.

DETAILS OF THE VIOLATIONS AND ADMINISTRATIVE RECOMMENDATIONS CONCERNING DEBARMENT ARE CONTAINED IN THE ATTACHED INVESTIGATIVE REPORT AND DEPARTMENT OF LABOR TRANSMITTAL LETTER.

WE PROPOSE, WITH YOUR APPROVAL, TO DISBURSE THE $1,257.48 ON DEPOSIT HERE TO THE UNDERPAID EMPLOYEES. OUR PROPOSAL AND THE MATTER OF WHETHER THE CONTRACTOR'S NAME SHOULD BE PLACED ON THE DEBARRED BIDDERS LIST FOR VIOLATIONS UNDER THE DAVIS-BACON ACT ARE FORWARDED FOR YOUR CONSIDERATIONS AND INSTRUCTIONS.

FOR FURTHER INFORMATION, PLEASE CONTACT MS. PAT BUNDY ON EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP

RETURNED. THE FEDERAL AVIATION ADMINISTRATION (FAA) FORWARDED TO YOUR OFFICE A CHECK IN AN AMOUNT SUFFICIENT TO REIMBURSE FOUR EMPLOYEES THAT BEAVER VALLEY BUILDING SUPPLY, INC., WAS UNABLE TO LOCATE AND ONE EMPLOYEE WHO REFUSED TO ACCEPT PAYMENT. THE DEPARTMENT OF LABOR (DOL) FORWARDED THE FAA INVESTIGATION FILE TO YOUR OFFICE. BOTH OF THESE ACTIONS ARE PART OF THE NORMAL PROCEDURE IN THOSE CASES INVOLVING UNDERPAYMENT OF MECHANICS AND LABORERS EMPLOYED ON FEDERAL CONTRACTS COVERED BY THE DAVIS-BACON ACT.

HOWEVER, WE NOTED THAT IN ITS LETTER OF FEBRUARY 20, 1977, TO THE DIRECTOR OF THE GREATER PITTSBURGH INTERNATIONAL AIRPORT, FAA STATED THE FOLLOWING:

"IN THE MEANTIME, WE SUGGEST THAT AN AMOUNT SUFFICIENT TO COVER SUCH BACK WAGES BE WITHHELD FROM THE CONTRACTOR. IF WE ARE NOT NOTIFIED THAT SUCH WITHHOLDING IS TAKING PLACE, WE WILL WITHHOLD AN APPROPRIATE AMOUNT FROM YOUR NEXT REQUEST FOR FEDERAL FUNDS."

THE ABOVE STATEMENT BY FAA CAUSED US TO SUSPECT THAT THE CONTRACT WAS A FEDERALLY ASSISTED CONTRACT RATHER THAN A DIRECT CONTRACT BETWEEN THE FEDERAL GOVERNMENT AND JAMES JULIAN, INC. AN INFORMAL INQUIRY TO DOL CONFIRMED OUR SUSPICION.

IN THIS REGARD, IN JORDAN & NOBLES CONSTRUCTION CO., B-198875, JUNE 10, 1980, 80-1 CPD 401, WE STATED IN PERTINENT PART:

"*** WE HAVE HAD OCCASION TO COMMENT GENERALLY UPON DAVIS-BACON ACT APPLICABILITY TO FEDERALLY ASSISTED PROGRAMS SUCH AS THOSE INVOLVED IN THE PRESENT CASE. WE HAVE STATED THAT, WHILE IN NUMEROUS INSTANCES THE CONGRESS HAS EXTENDED THE PREVAILING WAGE REQUIREMENT TO FEDERALLY ASSISTED CONSTRUCTION AND THERE HAS BEEN A TENDENCY TO SAY THAT THESE PROGRAMS ARE COVERED BY THE DAVIS-BACON ACT, THIS CHARACTERIZATION IS INCORRECT, SINCE NO DIRECT FEDERAL CONTRACTS ARE INVOLVED AND NEITHER THE DAVIS-BACON ACT ITSELF NOR THE ENFORCEMENT PROVISIONS OF THE DAVIS-BACON ACT PERTAINING TO OUR OFFICE HAVE BEEN MADE APPLICABLE. ***"

ACCORDINGLY, SINCE THE ENFORCEMENT PROVISIONS OF THE DAVIS-BACON ACT WHICH WE ARE REQUIRED TO ADMINISTER DO NOT APPLY TO THE CONSTRUCTION WORK UNDER THE CONTRACT IN THIS CASE, WE HAVE NO AUTHORITY TO DISBURSE THE FUNDS ON DEPOSIT WITH YOUR OFFICE OR TO IMPOSE DEBARMENT SANCTIONS AGAINST THE PRIME CONTRACTOR OR SUBCONTRACTOR.

THE FUNDS ON DEPOSIT WITH YOUR OFFICE SHOULD BE TRANSMITTED TO DOL WHICH IS RESPONSIBLE FOR THE DISBURSEMENT OF WAGE UNDERPAYMENTS UNDER FEDERALLY ASSISTED CONTRACTS.